Dyson v. District of Columbia, 11-7146
| Decision Date | 05 February 2013 |
| Docket Number | No. 11-7146,11-7146 |
| Parties | SHEKITA C. DYSON, APPELLANT v. DISTRICT OF COLUMBIA, APPELLEE |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Donna Williams Rucker was on the briefs for appellant.
Irvin B. Nathan, Attorney General, Office of the Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, Donna M. Murasky, Deputy Solicitor General, and Carl J. Schifferle, Assistant Attorney General, were on the brief for appellee.
This case was considered on the record from the United States District Court for the District of Columbia and on the briefs filed by the parties. See FED. R. APP. P. 34(a)(2); D.C. CIR. R. 34(j).
Before: HENDERSON and GRIFFITH, Circuit Judges, and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge EDWARDS.
EDWARDS, Senior Circuit Judge: Appellant, Shekita Dyson, filed a complaint in the District Court on August 26, 2010, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., the District of Columbia Human Rights Act of 1977, D.C. CODE §§ 2-1401.01, et seq., and the Civil Rights Act of 1991, 42 U.S.C. § 1981a, against the District of Columbia ("City"). The complaint alleged that Appellant had suffered sexual harassment during the course of her employment with the District of Columbia Fire and Emergency Medical Services ("DCFEMS"). On November 1, 2010, as supplemented on May 18, 2011, the City moved to dismiss or, in the alternative, for summary judgment, contending that the Charge filed by Appellant with the Equal Employment Opportunity Commission ("EEOC") was untimely. The District Court granted the City's motion, dismissed Appellant's Title VII claim with prejudice because she had not filed a timely Charge with the EEOC, and declined to exercise supplemental jurisdiction over Appellant's D.C. Human Rights Act claim. Dyson v. District of Columbia, 808 F. Supp. 2d 84 (D.D.C. 2011) ("Dismissal Decision").
The District Court also noted that "Plaintiff [had] clarifie[d] that she [was] not asserting an independent cause of action under section 1981a but rather that it [was] referenced in her complaint as part and parcel of her Title VII claim." Id. at 88 n.5. The District judge thus concluded that there were "no 'claims' under [section 1981a] for the Court to dismiss." Id.
On September 28, 2011, Appellant filed a motion for reconsideration pursuant to Rule 59(e), FED. R. CIV. P. 59(e), "claiming that the time that elapsed while the EEOC[] processed her charge of discrimination should toll the statute of limitations." Dyson v. District of Columbia, No. 10-1454, slip op. at 2 (D.D.C. Nov. 4, 2011) ("Reconsideration Decision"). The District Court denied Appellant's motion, holding that "the circumstances of this case do not warrant equitable tolling." Id. at 3. Appellant now appeals solely from the District Court's denial of her motion for reconsideration.
We hold that the District Court did not err in finding that Appellant failed to meet the requirements for equitable tolling of the statute of limitations. She neither pursued her rights diligently nor proved that some extraordinary circumstance prevented her from satisfying the statute of limitations. See Felter v. Kempthorne, 473 F.3d 1255, 1260 (D.C. Cir. 2007) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Therefore, we are constrained to affirm the District Court's denial of Appellant's motion for reconsideration.
Appellant worked for DCFEMS as an emergency medical technician beginning in July 1997. Dismissal Decision, 808 F. Supp. 2d at 85. She alleged that, between "early 2007" and "May 15, 2007," Lieutenant James Clem, with whom she worked in DCFEMS, sexually harassed her. Id. at 85, 87. The District Court noted, based on the parties' submissions, that it was "unclear" whether Lt. Clem was Appellant's direct supervisor, but that "he outranked her, and he was authorized to discipline her and approve her overtime." Id. at 85.
Title VII requires that an administrative charge be filed within 180 days "after the alleged unlawful employment practice occurred" or within 300 days if "the person aggrievedhas initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice." 42 U.S.C. § 2000e-5(e)(1). The statute also prescribes that a Charge "shall be in writing and under oath or affirmation." Id. § 2000e-5(b).
On December 17, 2007 - 216 days after the alleged sexual harassment had ended - Appellant filed an Intake Questionnaire with the EEOC outlining the alleged sexual harassment. See Intake Questionnaire, reprinted in J.A. 68-71. The Intake Questionnaire is not a Charge of discrimination. A claimant normally files a Charge with the EEOC after the agency reviews the Intake Questionnaire. The Questionnaire expressly reminds claimants that "a charge of employment discrimination must be filed within the time limits imposed by law, generally within 180 days or in some places 300 days of the alleged discrimination." Id. at 1, reprinted in J.A. 68. The Questionnaire also instructs a claimant to call the EEOC if she or he has "not heard from an EEOC office within 30 days of mailing" the Questionnaire. Id. at 4, reprinted in J.A. 71. This instruction appeared just below Appellant's signature on the Intake Questionnaire. Id.
Appellant did not contact the EEOC between December 17, 2007, and April 17, 2008. The EEOC mailed Appellant a draft Charge of discrimination on March 17, 2008. On April 17, 2008, the EEOC received a Charge from Appellant, signed and dated the previous day. Charge of Discrimination, reprinted in J.A. 37-38. Her Charge was thus filed with the EEOC more than three hundred days after May 15, 2007, when the alleged harassment had ended. The District Court determined that, Dismissal Decision, 808 F. Supp. 2d at 87.
In her motion for reconsideration, Appellant claimed that the time that had elapsed while the EEOC processed her Intake Questionnaire before sending her a draft Charge of discrimination should toll the statute of limitations. Reconsideration Decision at 2. The District Court described Appellant's equitable tolling argument as a "variation" of the argument she had raised in response to the City's motion to dismiss. Id. In the view of the District Court, Appellant's motion for reconsideration offered "a similar but slightly different reason for why the statute of limitations should be tolled, but the result is the same." Id. The court then rejected the motion for reconsideration on the following grounds:
Application of equitable tolling is solely within the Court's discretion. Fortune v. Holder, 767 F. Supp. 2d 116, 119-21 (D.D.C. 201l). "The court's equitable power to toll the statute of limitations will be exercised only in extraordinary and carefully circumscribed instances." Smith-Haynie v. District of Columbia, 155 F.3d 575, 580 (D.C. Cir 1998), citing Mondy v. Sec'y of the Army, 845 F.2d 1051, 1057 (D.C. Cir. 1988). The Court finds that the circumstances of this case do not warrant equitable tolling. Plaintiff bears responsibility for much of the time that was wasted during the statute of limitations period. The 300-day statute of limitations clock began running on the date the alleged harassment ceased. Here, that date was May 15, 2007. But plaintiff waited over seven months - until December 17, 2007 - to contact the EEOC. The fact that it then took the EEOC three months to mail her the Charge (Form 5) does not alter theconclusion that a substantial majority of the delay was attributable to plaintiff.
Reconsideration Decision at 3.
On December 2, 2011, Plaintiff filed a timely Notice of Appeal from the Reconsideration Decision.
The City argues that Appellant's new theory of equitable tolling raised in support of her motion for reconsideration was untimely and therefore should not be considered by this court. Br. for Appellee at 9. The City cites Carter v. Washington Metropolitan Area Transit Authority, 503 F.3d 143, 145-46 n.2 (D.C. Cir. 2007), for the principle that an appellate court will not consider an argument raised for the first time in a motion for reconsideration. There are two problems with the City's claim: first, the City failed to raise this argument with the District Court; and, second, Carter is inapposite.
The City's argument was effectively forfeited because it was not raised with the District Court in opposition to Appellant's motion for reconsideration. Potter v. District of Columbia, 558 F.3d 542, 550 (D.C. Cir. 2009) . The City is correct that the District Court might have rejected Appellant's equitable tolling argument as untimely; had it done so we would have reviewed that decision only for abuse of discretion. See, e.g., Carter, 503 F.3d at 145-46 n.2 (). However, because the timeliness of Appellant's new equitable tolling argument was neither raisedwith nor considered by the District Court, we do not address it.
Although "[i]t is well settled that an issue presented for the first time in a motion pursuant to Federal Rule of Civil Procedure 59(e) generally is not timely raised," District of...
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